Court as rubber stamp: how ministries write their own laws

Summary

The Dutch administrative court has no effective enforcement mechanism against a government that refuses to decide. The one-euro doctrine in Zwolle illustrates this: a mother waits three and a half years for decisions, the judge cannot impose more than a symbolic penalty of one euro. UHT meanwhile pays 59 million euros in penalty payments without clearing the backlog. The state prefers paying over deciding.

At the same time, ministries design their own norm-setting through implementing regulations, circulars and work instructions that neutralise the effect of higher legal norms. The Tax and Customs Administration automatically classified benefit rejections as “unsuspendable debt”, thereby blocking access to statutory debt restructuring, and did so on the basis of an internal work instruction, not legislation. Article 120 of the Constitution prohibits the judge from reviewing these norms against the Constitution. The ABRvS confirmed this in 2023 (ECLI:NL:RVS:2023:772): the administrative judge may not review the Housing Benefits Act against article 1 of the Constitution.

The recovery constructions for childcare benefits victims, Stichting Gelijkwaardig Herstel (SGH), MijnHerstel, Radar Advies Groep, shift decision-making to semi-independent organisations. Legally, a state secretary cannot sideline the House of Representatives. The question is whether the chosen implementing constructions so hinder factual control that constitutional checks and balances lose their effectiveness.

This investigation documents three mechanisms: the powerless judge, the self-made norm, and the shifting of responsibility. It concludes with the question whether criminal liability of individual decision-makers is necessary.

Part I: The powerless judge

1.1 The one-euro doctrine

On 24 May 2026, Trouw documented how a affected mother from Zwolle filed four objections in September 2022 against reassessments of childcare benefit (2009-2012). Three and a half years later, the Recovery Organisation for Benefits (UHT) has still not processed those objections. Lawyer Narda Teke-Bozkurt went to court four times. Each time, the judge imposed a deadline with a penalty payment on UHT. UHT missed all deadlines.

The judge in Zwolle concluded that the penalty payments were apparently insufficient incentive. Instead of imposing higher penalties or deciding the case itself, the judge imposed a penalty of one euro per day, with a maximum of one euro. Lawyer Teke-Bozkurt: “This is how you flush citizens’ legal protection down the drain.”

University lecturer in administrative law Rens Koenraad (Tilburg Law School): “Such a one-euro doctrine undermines the authority of judicial decisions.” He argued that the judge should have decided the case itself: “Then as a judge you say to the government: if you don’t decide, I will.”

But the administrative judge does not have this power. The General Administrative Law Act (Awb) provides for penalty payments, not for substitute decision-making by the judge. The judge can compel the government to act, but if the government refuses, only more penalty payments, longer deadlines, or surrender remain.

1.2 The structural stalemate

This is not an incident. By the end of 2025, UHT had paid 59 million euros in penalty payments. The Council of State extended decision deadlines from 18 to 40 to 60 weeks. Even that does not help:

The Council of State as highest administrative judge has repeatedly extended deadlines. This is understandable in practice — UHT does indeed have staff shortages — but the effect is that the government postpones decisions and the citizen waits. Extending deadlines is not a solution but a symptomatic treatment of a structural problem.

1.3 Article 120 Constitution: the invisible wall

The Dutch constitutional system has a unique limitation: article 120 of the Constitution prohibits judges from reviewing the validity of laws against the Constitution. This review prohibition is unique in Europe. The Venice Commission (Council of Europe) has repeatedly advised to relax this prohibition.

The ABRvS confirmed in March 2023 (ECLI:NL:RVS:2023:772) that this review prohibition applies to the Housing Benefits Act (Wht). In July 2025 (ECLI:NL:RVS:2025:2864), the ABRvS confirmed that the flat rate of 500 euros per half-year for immaterial damage, established in the recovery legislation, is not reviewable by the administrative judge. The judge must accept the flat rate regardless of whether it covers full damage.

This means concretely: if the legislature establishes a compensation level that is structurally below actual damage, the citizen cannot challenge this through the administrative judge. The civil judge remains as the only route, but the recovery constructions close that route through settlement agreements (VSOs).

1.4 The legal reality: can Palmen sideline parliament?

No. Legally, a state secretary cannot sideline the House of Representatives. Dutch constitutional law provides a strict controlling role for the House:

• Article 68 Constitution: ministers must provide the House with all necessary information upon request
• Article 65 Constitution: the House can adopt motions
• Article 70 Constitution: right of access to documents
• The House can initiate parliamentary inquiries, demand debates, hold ministers accountable

A state secretary remains fully subject to parliamentary control. This applies regardless of what recovery act or implementing structure is used. Sandra Palmen cannot put the House of Representatives out of operation.

But. The criticism is about something subtler than sidelining the House. The discussion concerns the shifting of decisions to implementing organisations, committees, private recovery routes and civil law tracks. This creates the perception that political control becomes more difficult because many concrete decisions take place outside the direct view of the House.

That is different from sidelining the House. It is a question of factual transparency, not of constitutional authority.

1.5 The role of the administrative judge: more than formal

After the childcare benefits scandal, more emphasis has been placed on proportionality, human scale and legal protection. The administrative judge nowadays not only looks at a formal decision, but also at how the government uses its powers. The Wendde ruling of 23 October 2019 (ECLI:NL:RVS:2019:3535) reversed years of jurisprudence that had supported the Tax Administration’s approach.

The development is twofold. On one hand, the Wendde ruling shows that the judge can act correctively. On the other hand, the one-euro doctrine shows that the judge is powerless when the government structurally refuses. The judge can correct an individual decision, but cannot solve institutional failure. That requires the legislature. But the legislature is the government itself. The circle is complete.

Part II: The self-made norm

1.1 OGS classification: a circular system

The work instructions of the Tax and Customs Administration/Benefits reveal how the government introduced its own norm-setting that effectively neutralised higher legal norms:

Benefit awarded (decision)
    |
    v
Recovery (benefit rejected)
    |
    v
OGS classified ("unsuspendable")
    |  (automatic upon MSNP rejection re KOT)
    v
MSNP rejected (art. 288 Fw)
    |  (reason: "not in good faith" re benefits)
    v
WSNP inaccessible
    |
    v
Lifelong uncollectable debt
    |
    v
Exclusion from financial participation in society

The Tax Administration automatically classified benefit rejections as “unsuspendable debt” (OGS). This was not based on legislation but on an internal work instruction. The rejection letters contained the passage: “I request you to add this letter to any ‘declaration regarding the amicable process’, as referred to in art. 285, first paragraph, letter h of the Bankruptcy Act.” The Tax Administration knew that the rejection effectively excluded the citizen from statutory debt restructuring.

On 20 September 2022, the basis for OGS classification was changed from assessment amount to recovery amount. This proves that previous OGS classifications were structurally too high. More than 2000 items had to be revised. Citizens had been wrongly classified as “unsuspendable” for years, on the basis of an internal work instruction that had never been reviewed by any judge.

2.2 The all-or-nothing doctrine

Until October 2019, the Tax Administration interpreted the Awir such that for minor errors — a missing receipt, an incorrect amount — the full benefit had to be repaid. The Council of State only reversed this in October 2019 (ECLI:NL:RVS:2019:3535). Five years after the childcare benefits scandal.

The National Ombudsman called the fraud approach “unnecessary and disproportionate.” But the Tax Administration acted within formal law: the Awir had no hardship clause. The Council of State advised including a hardship clause. The Omtzigt amendment was watered down. In the recovery operation, the hardship clause was again refused.

The government created a norm (all-or-nothing) that was not in the law but was implemented as such, refused to correct it, and then blocked every attempt to review the norm. Article 120 of the Constitution prevented the judge from reviewing the law. The circle was complete.

2.3 Profiling systems without legal basis

The previous investigation RAM never disappeared documented seven successor systems to the banned RAM that are still running at the Tax and Customs Administration in 2026. The Dutch Data Protection Authority (AP) demanded immediate decommissioning of KTA and Informatiesjabloon in July 2025. The Tax Administration ignored this.

The AP concluded: “The Tax Administration has systematically violated the regulations regarding the protection of personal data with the RAM application for a long time. […] Citizens’ fundamental rights were seriously violated.”

But the AP could not impose sanctions: the violations were older than seven years and therefore statute-barred. The government had simply lied long enough. The message: violating fundamental rights has no consequences if you hide it long enough.

2.4 The state secretary as own judge

In December 2025, the state secretary concluded: “no reason to assume that citizens have been disadvantaged” by the successor systems. This while:

• KTA gives 18,000 employees access to all personal data without authorisation roles
• Informatiesjabloon exports personal data to Excel outside all security
• IHP consultations are not logged
• IFL runs on Excel macros without a transition plan
• The data vault with 2 million Excel files has not been searched

The government acts here as its own judge: it investigates itself, concludes “no reason,” and refuses external independent review. The external committee announced in the Kamerbrief of 22 May 2026 had not yet been established as of 27 May 2026. There were “conversations with potential committee members.”

Part III: The shifting of responsibility

3.1 Recovery through semi-independent constructions

The recovery operation for childcare benefits victims proceeds through three state-funded routes: Radar Advies Groep (OTB for victims abroad), Stichting Gelijkwaardig Herstel (SGH, flat-rate model), and MijnHerstel (online self-service portal). Victims receive on average 15-31% of actual damage. The District Court of North Holland awarded on 19 June 2025 (ECLI:NL:RBNHO:2025:8961) only 30,000 euros of the 654,159 claimed, a ratio of 4.6%.

These constructions raise a fundamental constitutional question:

Can the government reduce its constitutional and administrative law responsibility by placing implementation under a different legal construction?

3.2 The constitutional analysis

Legally, the House of Representatives can exercise its controlling role regardless of the implementing construction. The House can:

• hold debates about the recovery operation
• request documents under article 70 of the Constitution
• adopt motions
• initiate parliamentary inquiries or investigations
• hold ministers accountable

The recovery act changes nothing about this. What does change is the factual accessibility of information. If decisions are made by SGH, MijnHerstel or Radar, the documents are not directly at the ministry. The House must specifically know what to ask for. If the House does not know what it does not know, the controlling role does not function adequately.

This is not a legal limitation of the House’s controlling authority. It is a practical limitation of controlling effectiveness.

3.3 The ECHR dimension: access to the court

The shift to semi-independent constructions directly touches article 6 ECHR (right to a fair trial) and article 47 of the EU Charter (effective legal remedy). The core question:

Has the government, through the chosen recovery structure, restricted access to an independent court?

The relevant facts:

• None of the three routes offers judicial review. Radar refuses qualification as a functional administrative body (art. 1:1 paragraph 3 Awb), which would make objection and appeal possible.
• Settlement agreements (VSOs) close the civil route. After signing, the victim can no longer institute further claims. The HR 2018:412 ruling stated that VSOs only cover what parties have explicitly agreed, but practice shows that victims sign under pressure.
• The CWS was closed on 27 February 2026. The only administrative law route for individual damage assessment has disappeared. ~9,000 files were waiting in the queue.
• Novum requests are virtually always rejected. The civil judge remains formally accessible, but the threshold is virtually insurmountable.

The combination of these elements — no administrative law route, no judicial review through recovery routes, VSOs that exclude civil claims — suggests that effective access to an independent court is structurally restricted.

This is legally potentially more serious than the political discussion about “sidelining” the House. Article 6 ECHR and article 47 of the EU Charter guarantee the right to an effective remedy before an independent institution. If that right is systematically restricted by the chosen implementing structure, that is not a political issue but a rule-of-law issue of the first order.

3.4 Article 13 ECHR: the effective remedy

Article 13 ECHR requires an effective remedy against violation of the rights under the Convention. The European Court of Human Rights (ECtHR) established in Kudla v. Poland (2000) that the remedy must not only formally exist but must also be effective in practice. A remedy that theoretically exists but is practically inaccessible does not suffice.

The question for the Dutch situation is whether the combination of:

1. Closure of the CWS (only administrative law route)
2. VSOs that exclude civil claims
3. Flat-rate amounts that are structurally below actual damage (15-31%)
4. No judicial review through recovery routes
5. Novum requests that are virtually always rejected

together constitute a violation of article 13 ECHR. The individual elements are each formally lawful. The combination is the problem.

Part IV: The timeout that is no timeout

4.1 Limitation as strategy

The Dutch Data Protection Authority could not fine the Tax Administration for the RAM violations because they “were committed more than seven years ago.” The AP: “These are violations so serious that a firm sanction would not be out of place.” But sanctions remained absent.

This creates a perverse incentive: if the government hides violations long enough, the sanctions expire. The data vault was concealed for seven years. The successor systems operate without legal basis. The state secretary concludes “no reason.” The limitation period expires.

4.2 The state pays, the citizen waits

UHT pays 59 million euros in penalty payments. This is not compensation for damage. It is an operational cost of failure. The state can bear these costs because they are a fraction of the budget. The individual citizen cannot bear years of waiting. The asymmetry is structural:

4.3 The archipelago of shielded environments

The state speaks of “a data vault.” The reality, documented in the previous investigation, is an archipelago: the data vault with 64 million files, 1004 mailboxes, Q-drives, Connect People environments, FSV data vault. None of these environments has been systematically searched.

Senior civil servant Teusjan Vlot testified on 26 May 2026 that information management has been out of order for 25 years and that “there was never really any drive behind action plans.” The destruction stop has only applied since 9 October 2025. What was destroyed before that is unknown.

Part V: Is it time for criminal complaints?

5.1 Criminal liability of individual decision-makers

The question whether individual decision-makers can be held criminally liable for systematic violation of fundamental rights is not academic. It revolves around three elements:

Intent. The Tax Administration knew that RAM discriminated. The AP concluded “discriminatory processing carried out.” The OGS classification work instructions prescribed automatic classification as “unsuspendable.” This was not an unintentional error but an institutionalised system.

Causation. There is a direct link between the profiling, the recoveries, the OGS classifications and the damage to hundreds of thousands of citizens and entrepreneurs. The damage is documented: ~26,000 benefits families, ~180,000 FSV registrations, 2.2 million RAM entities.

Responsibility. The Donner Committee concluded that there was “unprecedented injustice in the Dutch rule of law.” But no one has been held personally liable. No civil servant, no minister.

5.2 International parallels

The Netherlands is not unique in this discussion. In Australia, the Robodebt scheme, an automated system that unlawfully imposed debts on hundreds of thousands of citizens, led to a Royal Commission that accused individual civil servants and ministers of knowingly maintaining an unlawful system. In the United Kingdom, the Windrush scandal, in which legal migrants were wrongly classified as illegal, led to the resignation of the minister and apologies from the Prime Minister.

In the Netherlands, no one has resigned over the childcare benefits scandal. The Rutte III cabinet fell, but over a different issue. Individual responsibility has never been assessed.

5.3 Relevant criminal law provisions

From the legal framework analysis, the following provisions are relevant:

The defence “I was only executing policy” is not automatically valid. The Supreme Court has confirmed in multiple rulings that civil servants have a personal duty of care. Having a job description does not absolve from the obligation to refuse unlawful instructions.

5.4 Who files the complaint?

The question of who can file a criminal complaint is practical. Potential complaints:

• Victims who demonstrate that they were specifically disadvantaged by the profiling systems
• Citizens whose GDPR rights were violated by the RAM successor systems
• Entrepreneurs who were excluded from societal participation through OGS classification
• The Public Prosecution Service can initiate an investigation on its own initiative

The Public Prosecution Service has to date not initiated an investigation into individual decision-makers on its own initiative. The Donner Committee did not explicitly recommend this. The question is whether the moment is approaching when the Public Prosecution Service can no longer avoid this investigation.

Conclusion: who still stops the state?

The rule of law is not an abstract concept. It is the guarantee that the state uses its power within limits. This investigation documents three mechanisms by which those limits are systematically exceeded:

1. The powerless judge. The administrative judge has no effective enforcement mechanisms. The one-euro doctrine shows that the judge can no longer compel the government to act. Article 120 of the Constitution prevents review of laws against the Constitution. The legislature is the government itself. The circle is complete.

2. The self-made norm. Ministries design norms through implementing regulations, circulars and work instructions that effectively neutralise higher legal norms. The OGS classification, the all-or-nothing doctrine, the profiling systems without legal basis: all based on internal rules, not on legislation. No judge has reviewed these norms.

3. The shifting of responsibility. The recovery constructions shift decision-making to semi-independent organisations outside the direct view of the House. Legally, the House cannot be sidelined. In practice, control is made more difficult. Effective access to an independent court is structurally restricted. This touches upon article 6 and 13 ECHR and article 47 of the EU Charter.

If no institution — not the judge, not the parliament, not the supervisor — is capable of enforcing recovery, then two questions remain:

Who still stops the state?

And: is it time for criminal law to fulfil that role?

References

Case law

• ECLI:NL:HR:1988:AD0344, Veenbroei ruling (Supreme Court 1988)
• ECLI:NL:HR:2018:107, Interest from unlawful act (SC 26 January 2018)
• ECLI:NL:HR:2018:412, VSO final discharge limited (SC 23 March 2018)
• ECLI:NL:RVS:2019:2572, All-or-nothing unlawful (ABRvS 23 July 2019)
• ECLI:NL:RVS:2019:3535, Wendde ruling: systematic failure (ABRvS 23 October 2019)
• ECLI:NL:RVS:2023:772, Review prohibition art. 120 Const. (ABRvS Grand Chamber 1 March 2023)
• ECLI:NL:RVS:2024:3114, Threshold amount interest maintained (ABRvS 31 July 2024)
• ECLI:NL:RVS:2025:2864, Flat rate not reviewable (ABRvS 2 July 2025)
• ECLI:NL:RBNHO:2025:8961, 4.6% compensation (District Court North Holland 19 June 2025)
• ECtHR, Kudla v. Poland, Application no. 30210/96 (26 October 2000)

Official documents

• Kamerbrief 2026D24511, Eerenberg & Palmen (22 May 2026)
• Kamerbrief policy response RAM (6 March 2025)
• Dutch Data Protection Authority, letter investigating RAM (9 July 2025), reference 2025-002145
• WRR Working Paper 021, Big Data for Fraud Prevention (April 2016)
• Venice Commission, advice on constitutional review prohibition Netherlands
• Donner Committee, final report March 2020

Media

• Trouw, Emiel Hakkenes: “Even after 59 million euros in penalties, the government still fails to act”, 24 May 2026
• Trouw, Esther Lammers: “House full of questions about discovered data vault at Tax Administration”, 26 May 2026
• Debatdirect House of Representatives, 26 May 2026, Operation of digital data vaults

OpenBrief investigation reports

• RAM never disappeared: the state profiles on
• Legal Frameworks and Violations: 75+ Statutory Provisions
• Recovery Operation as Instrument for Limiting Civil Remedies
• Recovery Organisations: Radar, SGH and MijnHerstel
• CWS Termination: end of administrative law damage route
• Jurisprudence Timeline: Key Rulings in the Childcare Benefits Scandal
• Credibility of the Dutch Rule of Law
• WOO Documents Recovery Operation Findings